‘Game Over’ for Democracy? Not by a Long Shot

by Mike McCabe, Executive Director

I saw a letter to the editor in the Wisconsin State Journal saying the U.S. Supreme Court “sold out the American people” in its ruling on election campaign spending. It’s hard to disagree with that.

Then there was this: “The average American’s voice will be forever silenced,” the writer warned.

Forever is a long time.

The view expressed in that letter to the editor is by no means an isolated one. I’ve heard it a lot since the Supreme Court issued its decision on January 21. But just because it’s a common opinion does not mean it’s not wrong to conclude the ruling effectively means “game over” for democracy. The game is never over.

Don’t get me wrong. The majority opinion in Citizens United v. Federal Election Commission is very good for corporations and big labor unions and very bad for average citizens. It radically redefines the First Amendment and erases rules that governed elections in this country for over a century.

At a time of corporate power and excess and irresponsibility not seen in our land since the Gilded Age, it is jaw dropping that five of nine U.S. Supreme Court justices can conclude that corporations do not have enough political influence or a loud enough voice and should be allowed to spend even more freely on elections. And likewise that labor unions have somehow been denied the right to speak in the political arena and need to be handed a megaphone.

Broadcast industry experts predict the ruling will mean an extra $300 million spent on TV ads in 2010. The biggest impact will be in federal elections, where restrictions on corporate and union spending had been in place. More spending on state elections also is possible, although a loophole big enough to drive the proverbial Mack truck through already was allowing special interests to effectively operate outside the law.

But all this does not mean there is no silver lining on this dark cloud. If nothing else, conservatives should no longer be able to reduce judicial elections to nonsense by proclaiming themselves the guardians of judicial restraint and labeling liberal candidates as “activist judges” who “legislate from the bench.” The Citizens United decision was the mother of all demonstrations of judicial activism, and it was the high court’s “conservative” faction that did it.

Nor should anyone be under the illusion that there’s nothing that can be done to combat the ruling and ensure that ordinary people have a voice in our political system. In fact, there is a large menu of possible courses of action.

Public financing of elections. Congress could pass the Fair Elections Now Act and the Wisconsin Legislature could build on the recent passage of the Impartial Justice bill creating publicly financed state Supreme Court elections and expand the model to all state offices. This option remains constitutionally sound and only awaits a forceful legislative response to the Supreme Court’s outrageous assault on our democracy.

Beefed-up disclosure. Even as they opened the door to unlimited corporate and labor union election spending, a supermajority of justices upheld disclosure of that election activity. Current disclosure laws at both the federal and state level are not adequate to allow the public to see who’s really buying all those campaign ads. But lawmakers could toughen those laws, with the Supreme Court’s blessing. Wisconsin’s Senate Bill 43 is a good place to start.

A constitutional amendment. The U.S. Constitution could be amended to clarify that money is not speech and that limits can be placed on campaign contributions and election spending to prevent free speech from becoming “fee speech.”

Shareholder knowledge and approval of political spending. Current laws don’t require that shareholders give their consent to having the money they’ve invested used for political campaigning. The laws don’t even ensure that they are made aware of election spending. That could be changed.

Union member approval of political spending. As with corporate political spending, current laws don’t give union members enough of a say over how labor leaders use their dues for political purposes. That too could be changed.

This is no exhaustive list. It’s just a sampling of ways we can push back.